The Fifth Circuit denied a petition for review of the BIA's order dismissing petitioner's appeal of the denial of her motion to reopen. The court rejected petitioner's contention that she was entitled to reopen the in absentia removal order because she never received notice despite having satisfied her statutory obligation to provide an address to receive notice.
The court held that 8 U.S.C. 1229(a)(1)(F)(i)—like its predecessor, 8 U.S.C. 1252b(a)(1)(F)(i)—requires an alien who is physically in the United States and subject to removal from the United States to provide a United States address to receive notice by mail. Applying this interpretation of section 1229(a)(1)(F)(i), the court held that the BIA did not abuse its discretion in dismissing the appeal and in rejecting the argument that a Guatemalan address was sufficient. Even assuming arguendo that an alien may satisfy her obligation to provide an address under section 1229(a)(1)(F)(i) by providing a foreign address, petitioner could not prevail because there was no realistic possibility that, absent the errors, the BIA would have reached another outcome than to dismiss the appeal. View "Luna-Garcia v. Barr" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's appeal of the IJ's determinations that petitioner was removable and ineligible for asylum. The IJ determined that petitioner's prior California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. However, petitioner argued that the conviction was no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64.
The panel held that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy. Therefore, the panel agreed with the BIA that petitioner's initial conviction retained its immigration consequences and rendered her removable. View "Prado v. Barr" on Justia Law

Villa, a citizen of Mexico, originally entered the U.S. in 1988 without inspection. He adjusted his status to that of a lawful permanent resident in 1995. Approximately nine years later, he was convicted of possession of cocaine and sentenced to a year in prison. In 2005, the Department of Homeland Security (DHS) initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) because he had been convicted of an aggravated felony. The Notice listed an address for the hearing “on a date to be set,” and “at a time to be set.” The Immigration Court later served on him a Notice of the date and time. He appeared; the immigration judge entered an order of removal. Villa waived his right to appeal and was removed to Mexico. He reentered the U.S. sometime in 2007, on foot at an unspecified location. In 2018, DHS served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal, 8 U.S.C. 1231(a)(5), which stated that Villa could contest the determination that he was removable under the prior order by oral or written statement but that he was not entitled to a hearing. The Seventh Circuit dismissed his petition for review for lack of jurisdiction, rejecting an argument that the 2005 Order was void because it was entered ultra vires and that the 2005 proceedings were never properly initiated because the original “Notice” was legally deficient. View "Serrano v. Barr" on Justia Law

Lopez-Aguilar went to the Indianapolis Marion County Courthouse for a hearing on a misdemeanor complaint charging him with driving without a license. Officers of the Sheriff’s Department informed him that an ICE officer had come to the courthouse earlier that day looking for him. He alleges that Sergeant Davis took him into custody. Later that day, Lopez-Aguilar appeared in traffic court and resolved his misdemeanor charge with no sentence of incarceration. Sergeant Davis nevertheless took Lopez-Aguilar into custody. He was transferred to ICE the next day. Neither federal nor state authorities charged Lopez-Aguilar with a crime; he did not appear before a judicial officer. ICE subsequently released him on his own recognizance. An unspecified “immigration case” against Lopez-Aguilar was pending when he sued county officials under 42 U.S.C. 1983. Following discovery, the parties settled the case. The district court approved the Stipulated Judgment over the objection of the federal government and denied Indiana’s motion to intervene to appeal. The Seventh Circuit reversed. The state’s motion to intervene was timely and fulfilled the necessary conditions for intervention of right. The district court was without jurisdiction to enter prospective injunctive relief. The Stipulated Judgment interferes directly and substantially with the use of state police power to cooperate with the federal government in the enforcement of immigration laws. View "Lopez-Aguilar v. Indiana" on Justia Law

The Second Circuit denied a petition for review of the BIA's order of removal based on petitioner's conviction for an aggravated felony. The court held that petitioner's conviction for conspiracy in the second degree to commit a felony -- murder in the second degree in this case -- under New York law was an aggravated felony. The court applied the categorical approach and held that second degree murder is clearly an aggravated felony within the federal definition. View "Santana-Felix v. Barr" on Justia Law

After appellants, each accompanied by a minor child, stated to Customs and Border Patrol (CBP) that they feared persecution in their home countries, they were arrested and charged with misdemeanor improper entry and detained in El Paso. Their children were transferred to the custody of the Office of Refugee Resettlement (ORR). In these consolidated appeals, appellants argued that they should not have been criminally prosecuted because they sought asylum, and being separated from their children rendered their convictions constitutionally infirm.
The Fifth Circuit affirmed the district court's judgment in favor of the government, holding that nothing in 8 U.S.C. 1225(b)(1)(A)(ii) prevents the government from initiating a criminal prosecution before or even during the mandated asylum process, nor have appellants shown that qualifying for asylum would be relevant to whether they improperly entered; appellants' argument that deporting them without their children amounted to cruel and unusual punishment under the Eighth Amendment failed because the four deported appellants were found inadmissible during post-conviction civil immigration proceedings, rather than criminal proceedings; the court declined to apply the outrageous government conduct doctrine in this case; appellants' claims of right of access to evidence were rejected; appellants' fair trial claim repackaged appellants' unsuccessful Brady claim and failed for the same reasons; and the government did not impermissibly burden appellants' right against self-incrimination. View "United States v. Vasquez-Hernandez" on Justia Law

Asylum applicants and asylum-related legal services challenged the Migrant Protection Protocols (MPP), which initiated a new inspection policy along the southern border. The district court concluded that the MPP lacked a statutory basis and violated the Administrative Procedure Act (APA). The district court then enjoined DHS on a nationwide basis from continuing to implement or expand the MPP. DHS argued that it relied on the contiguous-territory provision in 8 U.S.C.1225(b)(2)(C) as the statutory basis for the MPP.
The Ninth Circuit granted DHS's motion for a stay pending appeal and held that DHS was likely to prevail on its contention that 8 U.S.C.1225(b)(1), which outlines the procedures for expedited removal and specifies the class of non-citizens who are eligible for expedited removal, "applies" only to applicants for admission who are processed under its provisions. Under this reading, section 1225(b)(1) does not apply to an applicant who is processed under section 1225(b)(2)(A), even if that individual is rendered inadmissible by section 1182(a)(6)(C) or (a)(7). Consequently, applicants for admission who are placed in regular removal proceedings under section 1225(b)(2)(A) may be returned to the contiguous territory from which they arrived under section 1225(b)(2)(C). Therefore, plaintiffs were properly subject to the contiguous-territory provision because they were processed in accordance with section 1225(b)(2)(A), rather than section 1225(b)(1).
Furthermore, DHS was likely to prevail on plaintiffs' claim that the MPP should have gone through the APA's notice and comment process, because the MPP qualifies as a general statement of policy where immigration officers designate applicants for return on a discretionary case-by-case basis. Finally, the remaining factors governing issuance of a stay pending appeal weigh in the government's favor. View "Innovation Law Lab v. McAleenan" on Justia Law

The Fifth Circuit affirmed the BIA's order denying petitioner and her son's applications for asylum and withholding of removal. The court held that the BIA was not required to consider a reformulated particular social group on appeal that was never presented to the IJ. In this case, petitioners were on notice that appellate bodies like the BIA were not required to consider arguments made for the first time on appeal; petitioners were represented by counsel at each material stage of the proceedings; and the IJ gave their counsel multiple opportunities at the hearing to clarify or revise their proposed particular social group in view of his concerns about its viability. View "Cantarero-Lagos v. Barr" on Justia Law

Defendant Alexander Miles appealed the denial of his second petition for a writ of coram nobis. He pleaded guilty in 2009 to submitting a false affidavit in connection with an application for a visa for a 14-year-old girl from Cambodia to whom he was engaged. He already unsuccessfully challenged that judgment in a direct appeal, a motion for relief under 28 U.S.C. 2255, and a previous petition for a writ of coram nobis. The Tenth Circuit affirmed the denial of his second petition because each of its claims for relief either had been raised by Defendant in earlier proceedings and rejected by the Tenth Circuit, or could have been raised in those proceedings and was inexcusably neglected. View "United States v. Miles" on Justia Law

An IJ is required to inform a petitioner subject to removal proceedings of "apparent eligibility to apply for any of the benefits enumerated in this chapter." 8 C.F.R. 1240.11(a)(2). The apparent eligibility standard of 8 C.F.R. 1240.11(a)(2) is triggered whenever the facts before the IJ raise a reasonable possibility that the petitioner may be eligible for relief. When the IJ fails to provide the required advice, the appropriate course is to grant the petition for review, reverse the BIA's dismissal of the petitioner's appeal of the IJ's failure to inform him of this relief, and remand for a new hearing.
A successful Special Immigrant Juvenile (SIJ) application plainly can lead to relief from removal, and SIJ regulations are among those in the referenced subchapter, 8 C.F.R. 1245.1(a), (e)(2)(vi)(B)(3). The en banc court granted a petition for review of the BIA's dismissal of petitioner's appeal of the IJ's denial of his application for asylum and withholding of removal. The panel held that the IJ who ordered petitioner removed erred by failing to advise him about his apparent eligibility for SIJ status. View "C.J.L.G. v. Barr" on Justia Law